Data Processing Addendum
Last Updated: July 2022
This Data Processing Addendum (including its Attachments) (“DPA”) forms part of and is subject to the terms and conditions of the Subscription Services Agreement (the “Agreement”) by and between Customer and Poggio Labs.
1. SUBJECT MATTER AND DURATION.
a. Subject Matter. This DPA reflects the Parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with Poggio Labs’ execution of the Agreement. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent language in this DPA or any of its Attachments conflicts with the Agreement, this DPA shall control.
b. Duration and Survival. This DPA will become legally binding upon the effective date of the Agreement. Poggio Labs will Process Customer Personal Data until the relationship terminates as specified in the Agreement.
2. DEFINITIONS.
For the purposes of this DPA, the following terms and those defined within the body of this DPA apply.
a. “Customer Personal Data” means Customer Materials that are Personal Data Processed by Poggio Labs on behalf of Customer.
b. “Data Protection Laws” means the applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. “Data Protection Laws” may include, but are not limited to, the California Consumer Privacy Act of 2018 (“CCPA”); the EU General Data Protection Regulation 2016/679 (“GDPR”) and its respective national implementing legislations; the Swiss Federal Act on Data Protection; the United Kingdom General Data Protection Regulation; and the United Kingdom Data Protection Act 2018 (in each case, as amended, adopted, or superseded from time to time.)
c. “Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws.
d. “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
e. “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Poggio Labs.
f. “Subprocessor(s)” means Poggio Labs’ authorized vendors and third-party service providers that Process Customer Personal Data.
3. PROCESSING TERMS FOR CUSTOMER PERSONAL DATA.
a. Documented Instructions. Poggio Labs shall Process Customer Personal Data to provide the Subscription Services in accordance with the Agreement, this DPA, any applicable Order Form, and any instructions agreed upon by the Parties. Poggio Labs will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law.
b. Authorization to Use Subprocessors. To the extent necessary to fulfill Poggio Labs’ contractual obligations under the Agreement, Customer hereby authorizes Poggio Labs to engage Subprocessors.
c. Poggio Labs and Subprocessor Compliance. Poggio Labs shall: (i) enter into a written agreement with Subprocessors regarding such Subprocessors’ Processing of Customer Personal Data that imposes on such Subprocessors data protection requirements for Customer Personal Data that are consistent with this DPA; and (ii) remain responsible to Customer for Poggio Labs’ Subprocessors’ failure to perform their obligations with respect to the Processing of Customer Personal Data.
d. Right to Object to Subprocessors. Where required by Data Protection Laws, Poggio Labs will notify Customer prior to engaging any new Subprocessors that Process Customer Personal Data and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new Subprocessor, the Parties will work together in good faith to resolve the grounds for the objection.
e. Confidentiality. Any person authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
f. Personal Data Inquiries and Requests. Where required by Data Protection Laws, Poggio Labs agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws.
g. Sale of Customer Personal Data Prohibited. Poggio Labs shall not sell Customer Personal Data as the term "sell" is defined by the CCPA.
h. Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Poggio Labs agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgement, the type of Processing performed by Poggio Labs requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
i. Demonstrable Compliance. Poggio Labs agrees to provide information reasonably necessary to demonstrate compliance with this DPA upon Customer’s reasonable request.
j. Service Optimization. Where permitted by Data Protection Laws, Poggio Labs may Process Customer Personal Data: (i) for its internal uses to build or improve the quality of its services; (ii) to detect Security Incidents; and (iii) to protect against fraudulent or illegal activity.
4. INFORMATION SECURITY PROGRAM.
Poggio Labs shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data.
5. NOTICE OF SECURITY INCIDENTS.
Upon becoming aware of a Security Incident, Poggio Labs agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
6. CROSS-BORDER TRANSFERS OF CUSTOMER PERSONAL DATA.
a. Cross-Border Transfers of Customer Personal Data. Customer authorizes Poggio Labs and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
b. EEA, Swiss, and UK Standard Contractual Clauses. If Customer Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to Poggio Labs in a country that has not been found to provide an adequate level of protection under applicable Data Protection Laws, the Parties agree that the transfer shall be governed by Module Two’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“Standard Contractual Clauses”) as supplemented by Attachment 1 attached hereto, the terms of which are incorporated herein by reference. Each Party’s execution of the Agreement shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
7. AUDITS.
Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may carry out an audit of Poggio Labs’ policies, procedures, and records relevant to the Processing of Customer Personal Data. Any audit must be: (i) conducted during Poggio Labs’ regular business hours; (ii) with reasonable advance notice to Poggio Labs; (iii) carried out in a manner that prevents unnecessary disruption to Poggio Labs’ operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit shall be limited to once per year, unless an audit is carried out at the direction of a government authority having proper jurisdiction.
8. CUSTOMER PERSONAL DATA DELETION.
At the expiry or termination of the Agreement, Poggio Labs will delete all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Poggio Labs’ data retention schedule), except where Poggio Labs is required to retain copies under applicable laws, in which case Poggio Labs will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
9. PROCESSING DETAILS.
a. Subject Matter. The subject matter of the Processing is the Subscription Services pursuant to the Agreement.
b. Duration. The Processing will continue until the expiration or termination of the Agreement.
c. Categories of Data Subjects. Data subjects whose Customer Personal Data will be Processed pursuant to the Agreement.
d. Nature and Purpose of the Processing. The nature and purpose of the Processing of Customer Personal Data by Poggio Labs is the performance of the Subscription Services.
e. Types of Customer Personal Data. Customer Personal Data that is Processed pursuant to the Agreement.
ATTACHMENT 1 TO THE DATA PROCESSING ADDENDUM
This Attachment 1 forms part of the DPA and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Attachment 1 have the meaning set forth in the DPA.
The Parties agree that the following terms shall supplement the Standard Contractual Clauses:
SUPPLEMENTAL TERMS. The Parties agree that: (i) a new Clause 1(e) is added the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.”; (ii) a new Clause 1(f) is added to the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).”; (iii) the optional text in Clause 7 is deleted; (iv) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer must inform data exporter of any new subprocessor in accordance with Section 3(d) of the DPA; (v) the optional text in Clause 11 is deleted; and (vi) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).
ANNEX I. Annex I to the Standard Contractual Clauses shall read as follows:
A. List of Parties
Data Exporter: Customer. Address: As set forth in the Notices section of the Agreement. Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement. Activities relevant to the data transferred under these Clauses: The Subscription Services. Role: Controller.
Data Importer: Poggio Labs. Address: As set forth in the Notices section of the Agreement. Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement. Activities relevant to the data transferred under these Clauses: The Subscription Services. Role: Processor.
B. Description of the Transfer:
Categories of data subjects whose personal data is transferred: The categories of data subjects whose personal data is transferred under the Clauses.
Categories of personal data transferred: The categories of personal data transferred under the Clauses.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures: To the Parties knowledge, no sensitive data is transferred.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis): Personal data is transferred in accordance with the standard functionality of the Subscription Services, or as otherwise agreed upon by the Parties.
Nature of the processing: The Subscription Services.
Purpose(s) of the data transfer and further processing: The Subscription Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: Data importer will retain personal data in accordance with the DPA.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing: For the subject matter, nature and duration identified in the Agreement and the DPA.
C. Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the Parties consistent with the conditions set forth in Clause 13.
D. Additional Data Transfer Impact Assessment Questions:
Will data importer process any personal data under the Clauses about a non-United States person that is “foreign intelligence information” as defined by 50 U.S.C. § 1801(e)?
Not to data importer’s knowledge.
Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Clauses? For example, FISA Section 702. If yes, please list these laws:
As of the effective date of the DPA, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, including FISA Section 702, and no such court action is pending.
Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain:
No.
Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain:
No.
E. Data Transfer Impact Assessment Outcome: Taking into account the information and obligations set forth in the DPA and, as may be the case for a Party, such Party’s independent research, to the Parties’ knowledge, the personal data originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred pursuant to the Clauses to a country that has not been found to provide an adequate level of protection under applicable data protection laws is afforded a level of protection that is essentially equivalent to that guaranteed by applicable data protection laws.
F. Clarifying Terms: The Parties agree that: (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 7 of the DPA; (iv) where permitted by applicable data protection laws, data importer may engage existing subprocessors using European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors and such use of subprocessors shall be deemed to comply with Clause 9 of the Clauses; (v) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses; (vi) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; (vii) the information required under Clause 15.1(c) of the Clauses will be provided upon data exporter’s written request; and (viii) notwithstanding anything to the contrary, data exporter will reimburse data importer for all costs and expenses incurred by data importer in connection with the performance of data importer’s obligations under Clause 15.1(b) and Clause 15.2 of the Clauses without regard for any limitation of liability set forth in the Agreement.
3. ANNEX II. Annex II of the Standard Contractual Clauses shall read as follows:
Data importer shall implement and maintain commercially reasonable technical and organisational measures designed to protect personal data in accordance with the DPA.
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the DPA.
4. ANNEX III. A new Annex III shall be added to the Standard Contractual Clauses and shall read as follows:
The UK Information Commissioner’s Office International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is incorporated herein by reference.
Table 1: The start date in Table 1 is the effective date of the DPA. All other information required by Table 1 is set forth in Annex I, Section A of the Clauses.
Table 2: The UK Addendum forms part of the version of the Approved EU SCCs which this UK Addendum is appended to including the Appendix Information, effective as of the effective date of the DPA.
Table 3: The information required by Table 3 is set forth in Annex I and II to the Clauses.
Table 4: The Parties agree that Importer may end the UK Addendum as set out in Section 19.
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